Sen. Charles Grassley (R-Iowa) said at the nomination hearing Monday for Supreme Court nominee Elena Kagan that he will be asking whether the would-be justice would embrace judicial activism.

“You’ve … praised jurists who believe that the role of a judge is to ‘do what you think is right and let the law catch up’ and ‘bridge the gap between law and society,’ ” Grassley said. “To me, this kind of judicial philosophy endorses judicial activism, not judicial restraint.”

Hearing for Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court of the United States

Monday, June 28, 2010

Solicitor General Kagan, congratulations on your nomination to be an Associate Justice on the Supreme Court of the United States. This is an extremely important appointment, a real honor. I also welcome your family and friends. I’m sure they’re proud of your nomination. I’m glad they’re here to support you throughout your confirmation.

I’m committed to ensuring that this process is fair and respectful, but also thorough. The Constitution tasks the Senate with conducting a comprehensive review of the nominee’s record and qualifications. You’ve been nominated to a lifetime position on the Supreme Court. Consequently, the Senate has a tremendous responsibility to ensure that you truly understand the proper role of a Justice and the Supreme Court in our system of government. We want to ensure that, if confirmed, you’ll be true to the Constitution and laws as written.

We had a nice meeting in my office a few weeks ago. You have an accomplished academic and policy background. You excelled at Princeton University and Harvard Law School. You went onto be an Oxford Scholar. You clerked on the D.C. Circuit Court and the United States Supreme Court. You were a law professor at the University of Chicago Law School, as well as Dean of Harvard Law School. You were a lawyer here on the Judiciary Committee, and then with the Clinton Administration. You’re now the United States Solicitor General.

What is lacking from your background is any experience on a state or federal court, or much experience as a practicing lawyer. We don’t have any substantive evidence to demonstrate your ability to transition from a legal scholar and political operative to a fair and impartial jurist. We’ll need to acquire that evidence through your writings and the positions you’ve taken over the years, as well as your hearing testimony. I hope that you’ll answer our questions in a candid and forthright manner.

Our goal is not to have you commit to ruling in a certain way or for a particular party. Our goal is to see if you are capable of exercising judicial restraint. We want to know that you’ll exercise the preeminent responsibilities of a Justice by adhering to the law and not to the latest opinion polls. The policy choices need to be reserved for Congress.

It’s our duty to confirm a nominee who has superior intellectual abilities. But more importantly, it’s our duty to confirm a nominee who won’t come with a results-oriented philosophy or an agenda to impose his or her personal politics, feelings or preferences from the bench. It’s our duty to confirm a Supreme Court nominee who will faithfully interpret the law and Constitution without personal bias.

The fact that you haven’t been a judge is not dispositive. But because you don’t have that experience, it’s even more critical that we are persuaded that you have the proper judicial philosophy and will practice it once confirmed. We must be convinced that you have the most important qualification of a Supreme Court Justice. That qualification is the ability to set aside your personal feelings and political beliefs so you can administer equal justice for all in a dispassionate way.

Your relatively thin record clearly shows that you’ve been a political lawyer. Your papers from the Clinton Library have been described as showing “a flair for the political” and a “flair for political tactics.” You’ve been described as having “finely tuned . . . political antennae” and “a political heart.”

You were involved in a number of high profile, hot-button issues during the Clinton Administration, including gun rights, welfare reform, abortion, and the Whitewater and Paula Jones controversies. A review of the materials produced by the Clinton Library shows that you forcefully promoted liberal positions and offered analyses and recommendations that often were more political than legal in nature.

Not only that, your Marshall memos indicate a liberal and seemingly outcome-based approach to your legal analysis. More to the point, you have admitted that your upbringing steeped you in deeply held liberal principles. We should know whether, as you’ve said, you have “retained them fairly intact to this date.”

A judge needs to be an independent arbiter, not an advocate or rubberstamp for a political agenda. This point is absolutely crucial for Supreme Court Justices, since they aren’t as constrained to follow precedent to the same extent as judges on the lower courts. If you are confirmed to be an Associate Justice, you’ll have the final say on the law.

You’ve been a prominent member of President Obama’s team as Solicitor General. In nominating you to be an Associate Justice, President Obama clearly believes you measure up to his judicial “empathy” standard – a judge’s ability to “empathize” with certain groups over others.

Indeed, President Obama said that you credited your “hero” Justice Marshall with “reminding [you] that, . . . ‘behind the law there are stories – stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law . . . .’”

This “empathy” standard has been soundly rejected because it endorses the application of personal politics, feelings and preferences when judges decide cases. It encourages judges to usurp the functions held by the executive and legislative branches of government. A judge, and particularly a Supreme Court Justice, must unequivocally reject that standard. It does not comport with the proper role of a judge or an appropriate judicial method.

We all know that’s not what our great American tradition envisioned for the role of the judiciary. Rather, the Constitution requires that judges be free from personal politics, feelings and preferences. Judges and Justices are supposed to check their biases, personal preferences and politics at the door of the courthouse, so they can administer justice in an evenhanded manner. Our constitutional system of checks and balances prohibits Justices from implementing their political and social agendas through the judicial process.

You now have the burden of showing us that, despite your record as a political lawyer – rather than as a sitting judge or practitioner – you’ll apply the law impartially and not be a rubberstamp for the President’s agenda. A Supreme Court Justice shouldn’t be a member of someone’s team working to achieve a preferred policy result on the bench.

We’ll want to explore your views on whether and how a judge should use his or her background and experiences when deciding cases. We’ll want to ask you about your ability to decide cases in an impartial manner, in strict accordance with the law and Constitution, without bias or prejudice.

I’ll be asking you about your judicial philosophy, and whether you will allow biases and personal preferences to dictate your judicial method. You once wrote that it “is not necessarily wrong or invalid” for judges to “try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.” You’ve also praised jurists who believe that the role of a judge is to “do what you think is right and let the law catch up” and “bridge the gap between law and society.” To me, this kind of judicial philosophy endorses judicial activism, not judicial restraint.

I want to be sure that your judicial philosophy rejects legislating from the bench. I want to know that you’ll be able to exercise judicial restraint and resist the temptation to “mold and steer” the law and the Constitution to satisfy your fiercely-held beliefs and preferences. I want to be assured that your judging will be anchored in the Constitution, rather than in pursuit of a personal and political agenda from the bench.

Again, I’m committed to giving you a fair, respectful, but also deliberative process. You don’t have a judicial record on a state or federal bench that evidences your ability to be an impartial jurist. So I hope that you’ll be forthcoming in your responses to our questions about your judicial philosophy and positions on Constitutional issues. You urged the Judiciary Committee to delve more deeply into a nominee’s record so that the Supreme Court confirmation process doesn’t turn into a “vapid and hollow charade.” I hope you’ll live up to your own standard so we can make an informed decision. I look forward to hearing your testimony and answers to our questions.